1998 Toyota 4Runner Rollover Accident Causes Wrongful Death
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
JULIO OBEDIENTE, Individually and as Successor In Interest to the Estate
of ELISA OBEDIENTE, CESAR OBEDIENTE,
JULIO OBEDIENTE, JR., RAFAEL
OBEDIENTE, and SANDRA DUFFAU, Plaintiffs,
vs.
TOYOTA MOTOR SALES, U.S.A., INC; A California Corporation; TOYOTA MOTOR
CORPORATION; COURTESY TOYOTA OF BRANDON, INC.; and DOES 1 through 100,
inclusive, Defendants.
CASE
NO.: YC060158
[UNLIMITED CIVIL]
CASE ASSIGNED FOR ALL PURPOSES TO:
JUDGE
DEPARTMENT
COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH AND SURVIVAL ACTION FOR:
1.Strict Product Liability
2. Negligent Product Liability
3.
Breach of Implied Warranty of Fitness
4. Misrepresentation
Complaint Filed:
Trial Date
COME NOW, Plaintiffs JULIO
OBEDIENTE, Individually and as Successor In Interest to the Estate of
ELISA OBEDIENTE, CESAR OBEDIENTE, JULIO OBEDIENTE, JR., RAFAEL OBEDIENTE,
and SANDRA DUFFAU for causes of action against Defendants and each of
them, allege as follows.
COMMON ALLEGATIONS FOR ALL CAUSES OF ACTION
1. At all times herein mentioned, Plaintiffs JULIO OBEDIENTE,
CESAR OBEDIENTE, JULIO OBEDIENTE, JR., RAFAEL OBEDIENTE, and SANDRA DUFFAU were
and are individuals and residents of the State of Florida, County of
Hillsborough.
2. Plaintiff, JULIO OBEDIENTE, Individually and as Successor In
Interest to the Estate of ELISA OBEDIENTE, deceased, was and is the lawful heir
of the decedent, ELISA OBEDIENTE and brings this action as a survival action,
pursuant to California Code of Civil Procedure § 377.32, and also brings this
action as a wrongful death action, pursuant to C.C.P. §377.60, for the wrongful
death of his wife, and is joined in the wrongful death action by the
surviving children of the decedent, ELISA OBEDIENTE, namely CESAR OBEDIENTE,
JULIO OBEDIENTE, JR., RAFAEL OBEDIENTE, and SANDRA DUFFAU.
3. At all times mentioned herein this complaint, defendants, TOYOTA
MOTOR SALES, USA, INC. was and is a corporation duly organized and
existing pursuant to the laws of the state of California, with principal places
of business in the city of Torrance, county of Los Angeles, state of
California.
4. At all times mentioned herein this complaint, defendants, COURTESY
TOYOTA OF BRANDON, INC. was and is a corporation duly organized and existing
pursuant to the laws of the state of Florida, with principal place of business
in the city of Tampa, county of Hillsborough, state of Florida.
5. At all times herein mentioned, defendant TOYOTA MOTOR CORPORATION,
was and is a corporation duly organized and existing under the laws of Japan
with a principal place of business in the City of Tokyo, Japan. At all times
herein mentioned, defendant TOYOTA MOTOR CORPORATION and DOES 1 through 100,
were and are corporations qualified and/or authorized to do business in the
state of California and were at all times herein mentioned, doing business
within the state of California.
6. The true names and/or capacities, whether individual, corporate
associate, governmental or otherwise of defendant DOES 1 through 100, inclusive
and each of them are unknown to the plaintiffs, who therefore sue said
defendants by such fictitious names. When the true names and/or capacities
of said defendants are ascertained, the plaintiffs will seek leave of this court
to amend the complaint accordingly.
7. The plaintiffs are
informed and believe, and based thereupon allege, that each defendant designated
herein as a DOE was responsible, negligently or in some other actionable manner,
for the events and happenings herein referred to which proximately caused the
damages to the plaintiffs as hereinafter alleged, either through said
defendant’s own negligence or through the conduct of its agents, servants,
employees or representatives in some other manner.
8. The plaintiffs are informed and believe and based thereupon allege
that at all times mentioned herein the defendants and each of them were the
agents, servants, employees, representatives and/or joint venturers of their
co-defendants and were, as such acting within the course, scope and authority of
said agency, services, employment, representation and/or joint venture in that
each and every defendant, as aforesaid when acting as principal, was negligent
in the selection and hiring of each and every other defendant as an agent,
servant, employee, representative and/or joint venturer.
9. The plaintiffs are informed and believe, and based thereupon allege
that at all times mentioned herein each of the defendants, including defendant
DOES 1 through 100, inclusive, and each of them were the agents, servants,
employees, representatives of each of the remaining defendants and were at all
times material hereto acting within the authorized course and scope of said
agency, service, employment and/or representation, and/or that all of said acts,
conduct and omissions were subsequently ratified by their respective principals
and the benefits thereof accepted by such principals.
10. At all times mentioned herein, defendants, TOYOTA MOTOR SALES, USA,
INC., TOYOTA MOTOR CORPORATION, COURTESY TOYOTA OF BRANDON, INC., and DOES 1
through 50, were and are engaged in the business of manufacturing, fabricating,
designing, assembling, distributing, selling, inspecting, servicing, repairing,
marketing, warranting, modifying, aftermarket equipping and modifying, leasing,
renting, selling, retailing, wholesaling and advertising a certain subject 1998
Toyota 4Runner Sport Utility Vehicle (as well as and/or aftermarket parts and/or
installation guides) Florida License No. B63ZE, (“SUBJECT 4RUNNER”) and
each and every component part thereof, which defendants knew, or in the exercise
of reasonable care should have known, would be used without inspection for
defects in its parts, mechanisms or design, for use in the State of California
and elsewhere.
11. On or about May 24, 2009, at approximately
2:27 p.m., on Interstate 75 (SR93A) southbound north of Fletcher, in the
county of Hillsborough, state of Florida. Decedent ELISA OBEDIENTE
who was driving the SUBJECT 4RUNNER, attempting to make a lane change from the
outside lane to the inside lane when she saw another vehicle approaching in the
inside lane. When she directed her vehicle back into the outside lane the
maneuver caused her to lose control of the SUBJECT 4RUNNER as a result of a
dynamic oversteer resulting from the lateral instability of the SUBJECT 4RUNNER,
which was beyond the recovery capabilities of decedent as a nonprofessional
driver, which eventually caused the vehicle’s tires to exceed their maximum
cornering speed causing the vehicle in turn to rollover due to its low Static
Stability Factor (“SSF”), i.e., high center of gravity and comparatively narrow
track width. As a result of the roll of the SUBJECT 4RUNNER the roof of
the SUBJECT 4 RUNNER, which was designed and manufactured with insufficient
strength in its “A”, “B”, “C” and “D” pillars, windshield headers and roof
rails, was incapable of withstanding the weight of the vehicle when inverted and
was caused thereby to crush inward toward the decedent causing partial ejection
resulting in decedent suffering blunt impact with lacerations of left cephalic
vein and brachial artery branches and positional asphyxia culminating in catastrophic and fatal injuries.
FIRST CAUSE OF ACTION (Strict Product Liability against
Defendants TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, USA, INC.,
COURTESY TOYOTA OF BRANDON, INC., and DOES 1 through 50, Inclusive)
12 Plaintiffs reallege and incorporate by reference each of
paragraphs 1 through 11, above, as though fully set forth herein.
13. Defendants, TOYOTA MOTOR SALES, USA, INC., TOYOTA MOTOR CORPORATION,
COURTESY TOYOTA OF BRANDON, INC. (hereinafter “TOYOTA DEFENDANTS”), and
DOES 1 through 50, and each of them, knew that said SUBJECT 4RUNNER was to be
purchased and used without inspection for defects by the users of that vehicle
including but not limited to plaintiffs and their decedent herein.
14. The SUBJECT 4RUNNER and each of its component
parts and/or aftermarket parts and/or installation guides mentioned were
manufactured, designed, assembled, packaged, tested, fabricated, analyzed,
inspected, merchandised, marketed, distributed, labeled, advertised, promoted,
sold, supplied, leased, rented, repaired, modified, aftermarket modified,
adjusted, selected and used with inherent vices and defects both in design and
manufacturing and by failure to warn (hereinafter “SUBJECT DEFECTS”) which made
it dangerous, hazardous and unsafe both for its intended use or for reasonably
foreseeable misuses.
15. These SUBJECT DEFECTS included, but were not limited
to:
A. The “A”, “B”, “C” and “D”
pillars/windshield headers and roof rails were designed and fabricated without
sufficient strength and structural integrity to withstand roof crushing forces
without imparting injury-producing forces upon vehicle occupants during
foreseeable accident rollovers of such vehicles, which rollover propensities
where significantly heightened, as defendants and each of them well knew at the
time of manufacture, by the relatively low SSF of the SUBJECT 4RUNNER; and
B. The SUBJECT 4RUNNER was designed and
manufactured with insufficient lateral and roll stability so as to keep the
vehicle upright during cornering and handling by an ordinary driver during
reasonable foreseeable roadway and traffic conditions, including, but not
limited to, evasive driving maneuvers at freeway speeds undertaken to avoid
collisions from encroaching
vehicles.
C. The SUBJECT
4RUNNER did not have Electronic Stability Control (“ESC”) installed, which ESC
was not only technologically feasible, but was readily available by the TOYOTA
DEFENDANTS in the 1995 Model Year 4Runner, including the SUBJECT 4RUNNER at
relatively little additional cost, which ESC would sense oversteer or
understeer, and automatically adjust braking and throttle to match the vehicle’s
direction to the driver’s intention to assist the vehicle’s driver to maintain
directional control. Such ESC system, had it been installed in the SUBJECT
4RUNNER, would have dampened and mitigated the dynamic oscillations and
oversteer in the laterally unstable SUBJECT 4RUNNER sufficiently so as to have
prevented decedent ELISA OBEDIENTE’s ultimate loss of control and rollover,
causing the ensuing rollover accident and decedent’s resulting serious and fatal
injuries. Such ESC should have been standard equipment on the SUBJECT
4RUNNER given the enhanced and advanced aforementioned lateral instability and
rollover propensities of the SUBJECT 4RUNNER known to the defendants and the
purchase purpose of the SUBJECT 4RUNNER, i.e., for use by members of the public
inexperienced with the aforementioned lateral instability and rollover
propensities of the SUBJECT 4RUNNER and/or of unknown and/or undisclosed driving
experience.
D. Defective and unsafe window
systems in the side and rear windows, which failed to comply with the purposes
of Federal Motor Vehicle Safety Standard (FMVSS) 205, in that the window systems
did not reduce or mitigate injuries resulting from impact to the glazing
surfaces and did not minimize the possibility of occupants being thrown through
the vehicle windows in collisions. The entire window system, its frame and
design of the structure, as part of the occupant restraint system, failed to
restrain the decedent and parts of her body were thrown through the defective
vehicle’s window system when the system totally failed during the accident
sequence, opening portals for the decedent’s partial ejection and severe
lacerations resulting fatal injuries, which window system defendants knew and
were aware would fail, shatter and lacerate the occupants and create openings
for occupant ejection in the event of a roll-over and/or side slip/skid or rear
impact accident, and which in this case, did create portals and openings
allowing the decedent to be partially ejected during the accident sequence, and
causing fatal injuries. Despite the availability to defendants of the knowledge
and technology to use alternative feasible designs for the side and rear window
systems of the SUBJECT 4RUNNER, which would have prevented the partial ejection
of the decedent and her body parts and prevented the fatal injuries during the
rollover and side slip/skid accident, defendants did not use such alternative
feasible designs in order to cut costs and save
money.
E. Defective and unsafe restraint
system, including but not limited to seat buckles, seat belts, shoulder belts
and retractors, defects including but not limited to false latching, inertial
unlatching, inadvertent unlatching, lack of pre tensioners, and retractor
failure, which defendants and each of them knew and were aware would fail to
restrain an occupant in the SUBJECT 4RUNNER in the event of a rollover accident,
and which, in this case, failed to restrain the decedent, ELISA OBEDIENTE, and
which further facilitated the partial ejection of her body during the accident
sequence.
F. Defendants and each of them,
despite their awareness of the aforementioned dangers and defects in the SUBJECT
4RUNNER, failed to give any warnings to the decedent and/or other purchasers and
users of the SUBJECT 4RUNNER of said aforementioned dangers and defects in the
SUBJECT 4RUNNER.
16. Said product and each of its component parts and/or
aftermarket parts and/or installation guides was unsafe for its intended use and
reasonably foreseeable misuses by reason of defects in its design and/or
manufacturing and/or failure to warn by said defendants, and each of them, in
that when said SUBJECT 4RUNNER, and each of its component parts and/or
aftermarket parts and/or installation guides were used by decedent on or about
May 24, 2009, as intended or in a reasonable foreseeable manner, said SUBJECT
4RUNNER, during reasonably foreseeable driving maneuvers, was dangerous and did
suffer a loss of lateral control, and did rollover in a roof crushing crash
resulting in the sudden partial ejection of the properly-restrained
decedent from the SUBJECT 4RUNNER.
17. As a direct and legal result of the conduct of defendants, and each
of them, and the defects inherent in the vehicle, fatal injuries were caused
thereby to plaintiffs’ decedent, in turn legally resulting in plaintiffs’
special and general damages in a sum in excess of the minimum subject matter
jurisdiction of this Superior Court according to proof at trial.
18. As a further direct and legal result of the conduct of defendants,
and each of them, plaintiffs have suffered a loss of both financial support and
love, care, companionship, comfort society, solace and moral support, and have
further suffered from the loss of their assistance in the operation and
maintenance of their home as a result of the loss of their mother, ELISA
OBEDIENTE and in the case of plaintiff JULIO OBEDIENTE, a further loss of
consortium as a result of the loss of his wife, in a sum of damages according to
proof at trial.
ALLEGATIONS SUPPORTING EXEMPLARY DAMAGES PRAYER
ON FIRST CAUSE OF ACTION
ONLY, BY JULIO OBEDIENTE, Individually and as Successor In Interest to the
Estate of ELISA OBEDIENTE, CESAR OBEDIENTE, JULIO OBEDIENTE, JR.,
RAFAEL OBEDIENTE, SANDRA DUFFAU AS AGAINST DEFENDANTS TOYOTA MOTOR SALES
USA, INC., TOYOTA MOTOR CORPORATION, and DOES 1 through 25,
Inclusive, ONLY
19. Plaintiffs are further informed and
believe and thereon allege that defendants TOYOTA MOTOR SALES USA, INC., TOYOTA
MOTOR CORPORATION, and DOES 1 through 25, and each of them intentionally engaged
in conduct which, with respect to the SUBJECT DEFECTS, plaintiffs allege were a
legal cause of their loss, damages, injuries and harm, exposed plaintiffs and
their decedent and other users of the SUBJECT 4RUNNER to serious potential
danger known to the defendants in order to advance the defendants’ pecuniary
interests and thus acted with a conscious disregard for the safety of the
plaintiffs and their decedent and other users of the SUBJECT 4RUNNER, warranting
an award of exemplary damages against defendants, TOYOTA MOTOR SALES USA, INC.,
TOYOTA MOTOR CORPORATION, and DOES 1 through 25, pursuant to Civil Code §
3294(c)(1), and the rule enunciated in Ford Motor Co. v. Home Ins. Co. (1981)
116 Cal. App.3d 374, 381-382 and PPG Industries, Inc v. Transamerica Ins. Co.
(1996) 49 Cal. App.4th 1120. The facts supporting the defendants’ intentional
conduct which exposed plaintiffs and their decedent and other users of the
SUBJECT 4RUNNER to serious potential danger known to the defendants in order to
advance the defendants’ pecuniary interests, are on information and belief, as
follows.
20. Since 1968, defendants and each of them have known and been placed
upon notice contemporaneously as a result of crash data, in-house testing,
field-service reports, and published studies that actual users of and passengers
carried within pickup trucks, vans, and sport utility vehicles (“SUVs”)
manufactured by said defendants and each of them, including but not limited to,
the SUBJECT 4RUNNER were susceptible to accident forces exceeding 8,000 Newtons,
which forces were more than sufficient to cause and bring about, and which
accident forces were and are causing and bringing about, serious and substantial
head and neck injuries during rollovers when such trucks, vans, and SUVs, and
the SUBJECT 4RUNNER were and are actually used by such users of these vehicles
and members of the public as intended or in a reasonably foreseeable manner.
21. Since 1968, defendants and each of them have known and been placed
upon notice contemporaneously as a result of the information described above,
that the A-pillars/windshield headers and roof rails of such trucks, vans, and
SUVs, and the SUBJECT 4RUNNER, must be manufactured and fabricated to withstand
rollover crushing forces of at least 8,000 Newtons in order to adequately
protect users of these vehicles and members of the public from serious injuries
and/or death from crushing of the roofs of such vehicles during rollovers when
such trucks, vans, and SUVs, and the SUBJECT 4RUNNER were and are actually being
used as intended or in a reasonably foreseeable manner.
22. In
or about 1983 and 1984, Chrysler and Anthony Sances of the Medical College of
Wisconsin published industry studies of which defendants and each of them were
in receipt of and on notice, which further established that the
A-pillars/windshield headers and roof rails of such trucks, vans, and SUVs, and
the SUBJECT 4RUNNER, must be manufactured and fabricated to withstand rollover
crushing forces of at least 8,000 Newtons in order to adequately protect users
of these vehicles and members of the public from serious injuries and/or death
from crushing of the roofs of such vehicles during rollovers when such trucks,
vans, and SUVs, and SUBJECT 4RUNNER were and are actually used as intended or in
a reasonably foreseeable manner.
23. In or about 1984, defendants and each of them, published and/or
participated in and/or received Hybrid III crash dummy specifications for a
catastrophic compressive neck injury of 4,000 Newtons at the load cell (i.e.,
the base of the human head) when they knew at that time that such forces were
approximately one-half of the crushing forces defendants knew at the time from
Cadaver and other studies in their possession, were minimally necessary to
effect head and neck injuries, which actions were taken to establish a false set
of rollover crush force minima which were not representative of actual rollover
accident conditions, and which were intended by said defendants to and which in
fact did falsely lead the public and regulatory bodies of the U.S. Government to
believe that the trucks, vans and SUVs manufactured by the defendants and each
of them had sufficiently fortified A-pillars/windshield headers and roof rails
within such trucks, vans, and SUVs, and SUBJECT 4RUNNER so as to be able to
withstand rollover crush forces of 4,000 Newtons.
24. In fact this was only half of the roof crush impact forces said
defendants and each of them knew were actually being sustained in such rollover
accidents, and which rollover crush forces said defendants, and each of them
knew, were well beyond the actual structural prophylactic limitations of the
A-pillars/windshield headers and roof rails said defendants were using and
continued to use within such trucks, vans, and SUVs, and SUBJECT 4RUNNER, such
that said defendants knew and intended that members of the public and users of
such vehicles were being exposed and would continue to be exposed to death and
serious injuries from the crushing of the roofs of such vehicles during
rollovers when such trucks, vans, and SUVs, and the SUBJECT 4RUNNER were and are
actually being used as intended or in a reasonably foreseeable
manner.
25. In 1985, as a result of information which had come
to light as a result of rollover crush accident data, in-house testing,
field-service reports, and published studies, defendants and each of them
published and/or participated in and/or received position papers detailing
rollover roof crush studies claimed to have been performed in-house (during
calendar years 1983 and 1984) (hereinafter “MALIBU 1 TEST RESULTS”). Said
defendants, in concert with other automakers, and each of them knew, and
intended that the MALIBU 1 TEST RESULTS falsely concluded and misrepresented,
based upon the 1983 to 1984 testing performed and/or received and/or
participated in by said defendants and the data obtained therefrom,
that.
(A) 4,000 Newtons was the reasonable average rollover crush force
delivered and extant in typical rollover crush accidents, when in fact
defendants knew that the actual rollover impact forces were twice that number,
i.e., at least 8,000 Newtons;
(B) That a videotaped excerpt from the
testing data which showed substantial injuries being delivered to the head of a
test subject were merely a contact patch, and not an actual instance of a
rollover crush injury, when in fact defendants knew at the time that this was
not the case;
(C) That the roof strength of the A-pillars/windshield
headers and roof rails which use half-sections of roll tubing (“OPEN SECTIONS”)
are just as secure and will prevent rollover crush injuries just as effectively
as complete roll tubing (“CLOSED SECTIONS”), which said defendants knew at the
time was false;
(D) That the roof strength of the A-pillars/windshield
headers and roof rails were just as effective and secure and would and did
prevent rollover crush injuries just as effectively in production model trucks
as in roll-caged trucks, when in fact said defendants knew this was false;
26. Defendants and each of them, individually and in concert
with other automakers, therein further knowingly falsified their test results,
ignored and suppressed data, and further falsely mis-characterized adverse test
data which said defendants knew at the time tended to prove that their trucks,
vans and SUVs were defective and unsafe in real world rollover accidents, and
would and did expose members of the public and users of said defendants’ trucks,
SUVs and vans to death and serious head and spinal injuries in the MALIBU 1 TEST
RESULTS due to the insufficient strength of the A-pillars/windshield headers and
roof rails in such vehicles.
27. After demands were made by litigants and other members of the public
following the 1985 publication of the MALIBU 1 TEST RESULTS, said defendants and
each of them, individually and in concert with other automakers, intentionally
spoliated and destroyed critical test evidence and test documentation upon which
the MALIBU 1 TEST RESULTS were allegedly based, so as to prevent discovery of
the falsehoods and misrepresentations made by said defendants in the MALIBU 1
TEST RESULTS, and to prevent disclosure of the fact that said defendants knew
that they were knowingly and intentionally exposing users of said defendants’
trucks, SUVs, vans and pick-ups, including plaintiffs’ decedent, to death
and serious head and spinal injuries in the MALIBU 1 TEST RESULTS due to the
insufficient strength of the A-pillars/windshield headers and roof rails
installed in such vehicles.
28. In 1990, defendants and each of them again published and/or
participated in and/or received second positions papers detailing rollover roof
crush studies that said defendants and other automakers claimed to have
performed in-house (hereinafter “MALIBU 2 TEST RESULTS”), in which results said
defendants knowingly and intentionally falsified test data: defendants and each
of them knew and intended that the MALIBU 2 TEST RESULTS falsely concluded and
misrepresented, based upon the 1983 to 1984 testing performed and/or
participated in and/or received by the said defendants and the data obtained
therefrom, that:
A. The test data conducted and
upon which the MALIBU 2 TEST RESULTS were based, supported the conclusion that
4,000 Newtons was the reasonable average rollover crush force delivered and
extant in typical rollover crush accidents, when in fact said defendants knew
that the actual rollover impact forces were twice that number, i.e., at least
8,000 Newtons;
B. That the restraint systems in
said Defendants’ trucks, vans, and SUVs were effective to prevent head contact
with the roof structures during times when rolling vehicles were inverted, when
in fact said defendants and each of them had used and implemented standing
pelvis dummies which did not engage or place any genuine “loads” upon the
restraint systems involved to begin with, for the purposes of falsely leading
the public and governmental regulators into believing that existing restraint
systems were adequate to mitigate roof crushing rollover injuries, when in fact
defendants knew that this was false;
C. Centrifugal forces extant in the genuinely prototypical rollover crush
accident were insignificant, unreasonably angles and vectors of impact forces
were appropriate and proper when said defendants and each of them in fact knew
that such angles and vectors were not representative of real accident conditions
and understated and/or outright misrepresented real accident conditions so as
falsely to lead the public and government regulators to conclude the roof
structures were of adequate strength, when said defendants knew this to be
false, that drop testing procedures were injury irrelevant (as they were
knowingly performed by said defendants from unrealistic heights), and that
rolling “spit” test procedures proved that members of the public would sustain
injury regardless of roof component strength, when in fact defendants knew at
that time that all such conclusions were false.
29. Defendants and each of them, individually and in concert with other
automakers, further knowingly falsified their test results, ignored and
suppressed data, and further falsely mis-characterized adverse test data which
said defendants knew at the time tended to prove that their trucks, vans, SUVs
and pick-ups were defective and unsafe in real world rollover accidents, and
would and did expose members of the public and users of said defendants’ trucks,
SUVs and vans to death and serious head, neck and spinal injuries in the MALIBU
2 TEST RESULTS due to the insufficient strength of the A-pillars/windshield
headers and roof rails in such vehicles.
30. At all times
mentioned herein, defendants and each of them were aware that use of complete
sections, thicker steel and stronger materials in A-pillars/windshield headers
and roof rails was at all times mechanically feasible, posed no adverse
consequences to consumers or to said defendants’ trucks, vans and SUVs, and were
only marginally more expensive to implement, which use of complete sections,
thicker steel and stronger materials in A-pillars/windshield headers and roof
rails would withstand rollover impact forces in excess of 8,000 Newtons and thus
would prevent death and serious injuries in most actual rollover accident cases,
including that accident which is the subject of this action.
31. At all
times herein mentioned, on information and belief, defendants and each of them
knew and were aware that members of the public were suffering from death and
serious injuries in rollover accidents which involved roof crushing forces in
said defendants’ trucks, vans, and SUVs as a result of said defendants’ failure
to use complete sections, thicker steel and stronger materials in
A-pillars/windshield headers and roof rails of said defendants’ vehicles.
32. At all times mentioned herein, despite the fact that defendants and
each of them were aware that use of complete sections, thicker steel and
stronger materials in A-pillars/windshield headers and roof rails was at all
times mechanically feasible, posed no adverse consequences to consumers or to
said defendants’ trucks, vans and SUVs, were only marginally more expensive to
implement, and would have prevented deaths and serious injuries in most actual
rollover accident cases, including that accident which is the subject of this
action, said defendants on information and belief intentionally refused to use
complete sections, thicker steel and stronger materials in A-pillars/windshield
headers and roof rails of their trucks, vans and SUVs: (1) to avoid the
increased expense of using such improvements in their vehicles (including costs
of redesign, more extensive materials, retooling, re-certification expenditures
and other costs of implementation), so as to preserve and widen said defendants’
profit margin on the sales of such vehicles; (2) to avoid disclosure during
re-certification and retooling processes of the fact that said defendants knew
their previously-manufactured trucks’ vans’ and SUVs A-pillars/windshield
headers and roof rails were of insufficient strength to withstand even modest
actual rollover accidents without the risks of serious injuries and death to
users of such vehicles, which would greatly increase said defendants’ legal
exposure in cases brought arising from rollovers of production vehicles already
in use by the public; and (3) to avoid taking action which would result in
disclosures leading to an expensive recall campaign by the National Highway
Transportation Safety Administration.
33. Plaintiffs are
informed and believe and further thereon allege that, from 1987 onward,
defendants, in concert with other automakers, conducted studies and analyses to
determine the extent to which the use of laminated glass windshields could be
used in the stead and in place of stronger materials resistant to foreseeable
roof crush for the purposes of meeting other inadequate and insufficient Federal
Motor Vehicle Safety Standard (FMVSS) 216 testing not replicating real world
roof crush events, all for the purposes of saving the defendants money and
advancing their pecuniary interests by reducing costs of production and
increasing profits, despite knowing at all times relevant that during a real
world roof crush event, the windshield will universally and always fracture
instantaneously losing its structural strength and thus instantaneously
depriving occupants of the SUBJECT 4RUNNER of any genuine sufficient protection
from catastrophic and/or fatal injuries as a result of the roof crush
forces. At the same time defendants thus were reducing the strength of the
SUBJECT 4RUNNER’s roof to be able to withstand foreseeable and statistically
inevitable real world roof crush events, in order to effectuate cost saving and
increase profits to the detriment of the safety of the public using such
vehicles, thus exhibiting a willful and conscious disregard of such public’s
safety, as alleged above. Defendants and each of them advertised and marketed
their vehicles as safe, rugged and tough, which in fact defendants knew at all
times they were making such representations that their SUBJECT 4RUNNER and other
similar trucks, vans and SUVs would be likely to leave occupants of the vehicle
totally unprotected from catastrophic injuries and death from roof crushing
forces during statistically inevitable and foreseeable rollover
incidents.
34. Plaintiffs further allege that, at the time of
manufacture of the SUBJECT 4RUNNER, defendants and each of them had available
ESC for use and installation in the SUBJECT VEHICLE, which ESC was not only
technologically feasible, but was readily available in the 1998 Model Year
4RUNNER, including the SUBJECT 4RUNNER at relatively little additional cost,
which ESC would address oversteer or understeer and automatically adjust braking
and throttle to match the vehicle’s direction to the driver’s intention so as to
help the driver maintain control. Such ESC system, had it been installed
in the SUBJECT 4RUNNER, would have dampened and mitigated the dynamic
oscillations and oversteer in the laterally unstable SUBJECT 4RUNNER
sufficiently so as to have prevented the loss of control and rollover following
the aforementioned vehicular contact, causing the ensuing rollover
accident and plaintiffs’ resulting injuries. Defendants at all times
herein relevant knew such ESC could and would mitigate and dampen the effects of
lateral instability in its SUVs including, but not limited to, the SUBJECT
4RUNNER, and which could have and would have likely prevented the oversteer and
under steer highly foreseeable in the SUBJECT 4RUNNER arising as a result
of its known lateral instability, and which ESC defendants knew would be likely
to avoid rollover accidents arising from such lateral instability, which
rollover accidents in such vehicles, defendants and each of them at all times
herein relevant knew, would like result in total roof crush and resulting
serious and/or fatal injuries to occupants of such vehicles, thus heightening
the accident and roof-crush prevention propensities of said vehicles as a
whole. Although the marginal cost per vehicle associated with
incorporation of such readily-available and optional ESC into defendants’
vehicle, including but not limited to, the SUBJECT 4RUNNER, was extremely low,
i.e., from $100 to $400 per vehicle, defendants and each of them, nonetheless
willfully failed and refused to incorporate ESC into such vehicles as standard
equipment, despite defendants’ knowledge that such ESC could and would prevent a
multitude of accidents and severe and/or fatal injuries arising from foreseeable
lateral instability and resulting rollover and roof crush accidents, including
the accident involving plaintiffs’ decedent and the SUBJECT 4RUNNER. Such
ESC should have been standard equipment on the SUBJECT 4RUNNER given the
enhanced and advanced aforementioned lateral instability and rollover
propensities of the SUBJECT 4RUNNER known to the defendants and the purchase
purpose of the SUBJECT 4RUNNER, i.e., for use by members of the public
inexperienced with the aforementioned lateral instability and rollover
propensities of the SUBJECT 4RUNNER and/or of unknown and/or undisclosed driving
experience. As a result, defendants thus willfully exposed decedent and
other members of the general public to the risks of death and serious injury
arising from such foreseeable and inevitable accidents, all for the advancement
of defendants’ pecuniary interests in the form of avoidance of diminished sales
associated with slightly higher sticker prices, potential further warranty
repair expense of ESC systems, and avoidance of taking action which would
potentially be perceived as remedial of the known lateral instability and
rollover and roof crush propensities of defendants’ SUVs, vans and light trucks,
including the SUBJECT 4RUNNER, thus potentially increasing the defendants’
liability exposure in lawsuits arising from the lateral instability, rollover
and roof crush characteristics of the defendants’ SUVs, vans and light trucks,
including the SUBJECT 4RUNNER.
35. Plaintiffs further allege that defendants knew and were aware at
the time of manufacture of the SUBJECT 4RUNNER that:
A. The SUBJECT 4RUNNER had a statistical
rollover death rate equal to that of the Suzuki Samurai, a known defective
vehicle;
B. The SUBJECT 4RUNNER had the same
SSF as the Toyota Land Cruiser, another of the defendants’ vehicles known to
have a low SSF and a resulting propensity to roll over on flat, level surfaces;
C. Defendants by and through their officers,
directors and agents, including but not limited to national merchandising
manager, Mr. Cecconi and Senior Staff Engineer, Mr. Yonekawa, had marketed the
SUBJECT 4RUNNER, to attract purchasers who were older, wealthier drivers
intending to use the vehicle for commuting as well as for outdoor activities,
which potential purchasers and users believed that the 4RUNNER’s height was a
safety factor in regard to better visibility, yet such marketing and advertising
did not disclose the heightened rollover risk attributable to such increased
vehicular height; defendants and their agents, officers and directors, further
created a marketing and advertising campaign at or about the time of
manufacture of said vehicle, including but not limited to, television
commercials and print media depicting the 4RUNNER performing maneuvers which,
under certain conditions well known to the defendants, were likely to cause the
vehicle to lose lateral control and rollover or tip up, and thereafter
consciously failed and refused to warn consumers of such risks;
D. Defendants, by and through their
officers, directors and agents, including but not limited to Senior Staff
Engineer, Mr. Yonekawa, knew and were fully aware that the 1998 4RUNNER was
susceptible to roll over, tip up, reduced roll over resistance as of and before
1984, due to the defendants’ performance of rollover resistance testing on
4RUNNERS and vehicles of other manufacture. Prior to the manufacture of
the SUBJECT 4RUNNER, Toyota knew that its 4RUNNER model failed stability tests,
and in fact, was listed as the number 2 most likely vehicle of its class to
rollover in the five state study undertaken and/or described in the Federal
Registry. TOYOTA DEFENDANTS, by and through their engineers, management or
others, developed tests, including, TSA-1544 and TSZ5100G, also called “fish
hook” turn tests, to determine the likelihood of rollover, wherein vehicles of
other manufactures as well as 4RUNNERS were tested on pre set steering and brake
inputs. The 4RUNNER failed Toyota’s own in-house test with rollover,
and/or two wheel tip-up, occurring at speeds as low as 32 miles per hour.
In addition, defendants knew that similar vehicles of other manufactures, such
as the Jeep Cherokee and Chevrolet S-10, did not rollover, tip-up or have
two wheel lift under the “fish hook” turn test. Despite these in-house
test failures, both TMC and TMS failed to recall the product or adequately
attempt to issue further warnings to consumers such as plaintiffs’ decedent
herein.
E. Thereafter, Toyota redesigned its
“fish hook” turn test to test for the “lateral acceleration” necessary to cause
two wheel lift, and in part, because the 4RUNNER could not pass Toyota’s initial
in-house test where as the Jeep Cherokee and Chevrolet S-10 could pass
said original “fish hook” turn test. The redesigned testing of the 1996
and later model 4RUNNER still resulted in roll over and/or two wheel tip up, at
speeds of 36 miles per hour, in violation of Toyota’s in-house design
specifications and requirements. Despite this knowledge that the 4RUNNER did not
comply with internal standards for rollover resistance and/or rollover
standards, and that the SUBJECT 4RUNNER would likely tip-up, rollover and/or
otherwise lose control in reasonably foreseeable maneuvers on level dry
pavement, including, but not limited to: evasive maneuvers, cornering at
reasonably foreseeable speeds, or any other steering imputes requiring
responsive turning at speeds less than 40 miles per hour, defendants continued
to market and manufacture the 4RUNNER, intentionally withholding this knowledge
and failed to warn purchasers of the vehicle’s propensity to tip-up and/or
rollover.
F. Defendants deliberately,
intentionally and falsely, failed to disclose the results of the failed testing
and instead, in response to the failed testing performed by defendants,
implemented newly designed tests, modified the prior tests and/ or implemented
recalibrated tests to make it appear that the 4RUNNER was not susceptible to
rollover, and/or two wheel tip-up, when performing anticipated maneuvers on dry,
paved surfaces, when in fact defendants knew and were fully aware that the
4RUNNER was susceptible to rollover, tip-up, and reduced rollover resistance
before 1984.
G. In addition, in order to
advance the defendants’ pecuniary interests, despite defendants’ full knowledge
of the 4RUNNER’s susceptibility to rollover and tip-up, and its reduced rollover
resistance, when equipped with Toyota’s standard wheel and tire package,
defendants intentionally and deliberately under-produced the standard wheel and
tire package so that purchasers of the 4RUNNER would purchase the upgraded,
larger wheel and tire package, which larger wheel and tire package defendants
knew and were fully aware would increase the 4RUNNER’s propensity to rollover
and tip-up due to the fact that the larger tires would raise the center of
gravity thereby decreasing the already insufficient lateral and roll stability
necessary to keep the vehicle upright during cornering and handling by an
ordinary driver during reasonable foreseeable roadway and traffic
conditions.
H. Defendants further knew and
were fully aware that certain design modifications, including but not limited to
lowering the 4RUNNER’s center of gravity and/or widening its tack width to
increase rollover resistance, would have improved resistance to improved
stability; yet defendants and each of them consciously decided not to utilize
such known and available design modifications in order to advance the
defendants’ pecuniary interests.
36. The actions of said defendants and each of them, as described above,
were thus undertaken with a willful and conscious disregard for the rights and
safety of consumers and users of said defendants’ trucks, vans and SUVs,
including the SUBJECT 4RUNNER, in order to advance the pecuniary gains of the
defendants and each of them, and such actions were despicable because such
conduct would and does kill people, and did so in this case, including but not
limited to the plaintiffs’ decedent herein, during the course of the accident
which is the subject of this lawsuit.
37. Plaintiffs further allege that the conduct of the defendants was
undertaken with the result that the 4RUNNER’s ultimate defects in its design and
production were fully intended by the defendants to reside therein such that
they were and are the product of the entire corporate management and corporate
policy of the defendants with respect to the conscious willful and disregard of
public safety for defendants’ pecuniary gain with regard to the design,
manufacture, production and marketing of the 4RUNNER.
38. As a direct and proximate result of the aforementioned conduct of
defendants and each of them, an award of exemplary and punitive damages against
the TOYOTA DEFENDANTS, and DOES 1 through 25, and each of them is proper and
appropriate to punish said defendants and to deter such conduct in the
future.
SECOND CAUSE OF ACTION
(Negligence [Product
Liability] against Defendants
TOYOTA MOTOR CORPORATION, TOYOTA MOTOR
SALES, USA, INC.,
COURTESY TOYOTA OF BRANDON, INC. and DOES 1 through
50, Inclusive)
39. Plaintiffs incorporate,
repeat and re-allege each and every allegation in paragraphs 1 through 38,
inclusive of the First Cause of Action, above and incorporate the same by
reference as though set forth herein.
40. At all times mentioned,
defendants and each of them, had a duty to properly manufacture, design,
assemble, package, test, fabricate, analyze, inspect, merchandise, market,
distribute, label, advertise, promote, sell, supply, lease, rent, warn, select,
inspect and repair said product and each of its component parts and/or
aftermarket parts and/or installation guides.
41. At all times mentioned, defendants and each of them and DOES
11 through 20 knew, or in the exercise of reasonable care should have
known that said SUBJECT 4RUNNER and each of its components parts and/or
aftermarket parts and/or installation guides were not properly manufactured,
designed, assembled, packaged, tested, fabricated, analyzed, inspected,
merchandised, marketed, distributed, labeled, advertised, promoted, sold,
supplied, leased, rented, repaired, selected and provided inadequate warnings
for the use and purpose for which it was intended in it was likely to injure the
person who used said product, each of its component parts and/or aftermarket
parts and/or installation guides.
42. Defendants, and each of them, so negligently and carelessly,
manufactured, designed, assembled, packaged, tested, fabricated, analyzed,
inspected, merchandised, marketed, modified, distributed, labeled, advertised,
promoted, sold, supplied, leased, rented, repaired, selected and provided
inadequate warnings and provided said SUBJECT 4RUNNER and each of its component
parts and/or aftermarket parts and/or installation guides so that the same was a
defective and dangerous product, unsafe for the respective use and purpose for
which it was intended when used and driven as recommended or for reasonably
foreseeable misuse by said defendants and each of them. In particular,
said SUBJECT 4RUNNER and each of its component parts and/or aftermarket parts
and/or installation guides during a reasonably foreseeable maneuver was
unstable, dangerous and would rollover with roof crushing instability causing
injury to its occupants, as alleged above. In addition, said SUBJECT
4RUNNER and each of its component parts and/or aftermarket parts and/or
installation guides during a reasonably foreseeable driving maneuver made with
due care was unstable and dangerous.
43. That as
a direct and proximate result of the negligence, carelessness, and unlawful
conduct of the defendants, and each of them, and the defects inherent in the
vehicle, legally caused the plaintiffs’ decedent’s fatal injuries, legally
resulting in plaintiffs’ damages as set forth above.
THIRD CAUSE OF ACTION
(Breach of Implied Warranty of Fitness
against Defendants
TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, USA, INC.,
COURTESY TOYOTA OF BRANDON, INC. and DOES 1 through 50, Inclusive)
44. Plaintiffs reallege and incorporate by reference each of paragraphs
1 through 43, above, as though fully set forth herein.
45. At all relevant times, defendants TMC and TMS, in placing the
SUBJECT 4RUNNER product in the stream of commerce warranted, guaranteed and
promised that the SUBJECT 4RUNNER was reasonably safe for the ordinary purposes
of its intended use, and plaintiffs’ decedent herein relied, to her detriment,
upon said warranties and promises in purchasing the SUBJECT 4RUNNER.
46. On or about May 24, 2009, at approximately 2:27 p.m., on Interstate
75 (SR93A) southbound north of Fletcher, in the county of Hillsborough,
state of Florida. Decedent ELISA OBEDIENTE who was driving the
SUBJECT 4RUNNER, attempting to make a lane change from the outside lane to the
inside lane when she saw another vehicle approaching in the inside lane. When
she directed her vehicle back into the outside lane the maneuver caused her to
lose control of the SUBJECT 4RUNNER as a result of a dynamic oversteer resulting
from the lateral instability of the SUBJECT 4RUNNER, which was beyond the
recovery capabilities of decedent as a nonprofessional driver, which eventually
caused the SUBJECT 4RUNNER’s tires to exceed their maximum cornering speed
causing the vehicle in turn to roll approximately 4 times due to its low Static
Stability Factor (“SSF”), i.e., high center of gravity and comparatively narrow
wheel base. As a result of the roll of the SUBJECT 4RUNNER the roof of the
vehicle, which was designed and manufactured with insufficient strength in its
“A”, “B” “C” and “D”, pillars, windshield headers and roof rails, was
incapable of withstanding the weight of the vehicle when inverted and was caused
thereby to crush inward toward the decedent causing fatal
injuries.
47. The SUBJECT 4RUNNER was unreasonably dangerous
even under such normal and reasonably foreseeable use as stated herein when it
left the TMC factory, as a direct result of which, plaintiffs’ decedent’s
partial ejection causing blunt impact with lacerations of left cephalic vein and
brachial artery branches and positional asphyzia resulting in catastrophic and
fatal injuries, when the vehicle rolled over into and across the center
guardrail.
48. Defendants TMC and TMS, through their own in-house testing, knew for
many years prior to production of the SUBJECT 4RUNNER that the vehicle was both
directionally and laterally unstable and prone to rollover at very low speeds,
in the 35 mile per hour range. The defendants knew that the center of
gravity (“CG”) was unacceptably high and that the track width (“TW”) was
unacceptably narrow which greatly contributed to the directional and lateral
instability of the SUBJECT 4RUNNER and which greatly increased the risk and
likelihood of rollover events occurring even during normal, reasonable and
foreseeable driving such as occurred herein. The defendants further knew that
the poorly designed suspension system, lack of electronic stability control
technology, lack of side curtain airbags, and inadequate warnings issued with
the vehicle would contribute significantly to rollover/injury/death events.
49. For several years prior to the subject accident date, TMC and/or TMS
had conducted numerous handling and stability tests, including, but not limited
to, TSA-1544 testing to evaluate rollover resistence performance of the 4RUNNER,
which were documented and showed that one and two wheel lift was occurring on
certain models of the 4RUNNER at even surface street speeds in the 30-40 mile
per hour range, yet both TMC and TMS failed to recall the product (although
TMC/TMS did attempt a partial fix with the addition of a hollow spring on
certain models), or adequately attempt to issue further warnings to consumers
such as Plaintiffs’ decedent herein.
50. At all relevant times, plaintiffs’ decedent was unaware of the
hidden design defects in the vehicle which rendered it unreasonably dangerous
for its intended use.
51. Defendants TMC and TMS further designed, manufactured, assembled,
warranted, promised, and sold an unreasonably dangerous vehicle in that the
inadequate roof strength, headers, and A, B, C and D pillars, defective and
unsafe restraint system as well as the use of tempered glass in the side windows
and lack of side curtain air bags were known to these defendants to enhance and
greatly increase the likelihood of severe and fatal injuries due to partial
ejection in the event of a rollover, thereby adding significant additional
danger to users of the product.
52. As a direct result of the
breach of warranty of fitness herein by the
defendants, plaintiff, individually as the
surviving spouse, and on behalf of the four (4) children of the decedent has
suffered substantial loss of financial support, loss of love, companionship,
affection, society, and advice, as have all of the legal heirs of ELISA
OBEDIENTE.
53. In addition, plaintiff’s decedent ELISA OBEDIENTE survived for a
period of time and was rendered medical aid and support prior to her death for a
period of time prior to being pronounced at the hospital.
54. Accordingly, plaintiff as representative of ELISA OBEDIENTE’s
estate is entitled to additional damages for the conscious pre-death pain and
suffering of decedent together with the medical costs incurred for her care and
treatment, in a sum to be determined.
FOURTH CAUSE OF ACTION
(Misrepresentation against Defendants
TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, USA, INC.,
COURTESY TOYOTA
OF BRANDON, INC. and DOES 1 through 50, Inclusive)
55. Plaintiffs reallege and incorporate by reference each of
paragraphs 1 through 54, above, as though fully set forth herein.
56. Defendants TMC and TMS misrepresented the character and quality of
the 3rd Generation 4Runner, generally, and specifically the SUBJECT 4RUNNER
through marketing, advertising, and promotional materials, by expressly and
impliedly warranting that the SUBJECT 4RUNNER was safe for its intended purpose.
The false representations that included express misrepresentations of material
fact concerning the character and quality of the product, materials used in its
construction, and in the testing of the SUBJECT 4RUNNER.
57. Plaintiffs and plaintiffs’ decedent ELISA OBEDIENTE justifiably
relied upon these false misrepresentations.
58. The misrepresentations were made through advertising, marketing and
promoting the product, the totality of which, taken as a whole, falsely
misrepresented that the product was safe for use in a manner indicated by
Defendants TMC, and TMS and to be suitable for consumers such as plaintiffs and
plaintiffs’ decedent ELISA OBEDIENTE.
59. Defendants TMC and
TMS fraudulently concealed the true character and quality of the 3rd Generation
4Runner and made intentionally false and fraudulent statements about the 4RUNNER
and specifically the SUBJECT 4RUNNER through marketing, advertising, and
promotional materials, by expressly and impliedly warranting that the SUBJECT
4RUNNER was safe for its intended purpose. The false and fraudulent statements
included express misrepresentations of material fact concerning the character
and quality of the product, materials used in its construction, and in the
testing of the SUBJECT 4RUNNER.
60. Plaintiffs and decedent ELISA OBEDIENTE justifiably relied upon
these false misrepresentations and had no reasonable ability to discover the
fraudulently concealed and affirmatively false information given to them by
Defendants.
61. The fraudulent acts and statements of the defendants included the
following:
A. Falsely
stating at page i of the Owner’s Manual, “We are proud of the advanced
engineering and quality construction of each vehicle we build” when defendants
knew that the SUBJECT 4RUNNER not only lacked “advanced engineering” but did not
have even the most “basic safety engineering” in that it lacked a safely
engineered lower center of gravity, had too narrow a width, or tread, and too
high a roof so as to make the vehicle extremely unstable and prone to rolling
over on the highways at speeds as low as 33 mph, as demonstrated prior to the
accident date by Toyota’s own testing; in lacking readily available “advanced
engineering” such as Electronic Stability Control, which defendants knew would
prevent the type of rollover event that killed plaintiffs’ decedent and which
defendants had previously installed in numerous other TOYOTA and LEXUS vehicles
as far back as 1995, both in the U.S. and in Japan; in failing to have “quality
construction” as claimed by using weak and inferior gauge steel and inadequate
strength support structures in the headers, roof rails and “A” and “B” posts
despite readily available technology and materials to do so, especially in the
SUBJECT 4RUNNER where the very high risk of rollovers and roof crush was
well-known to defendants; in failing to incorporate other “basic” or “advanced”
engineering and “quality construction” such as readily available laminated glass
for the side windows which, in combination with stronger roof supports and
deeper window channels, would have contained occupants such as plaintiffs’
decedent and prevented her partial ejection with resulting blunt impact with
lacerations of left cephalic vein and brachial artery branches and positional
asphyxia resulting in catastrophic and fatal injuries, especially in the SUBJECT
4RUNNER where the very high risk of rollovers and roof crush with shattering of
tempered glass creating portals of ejection in the side windows was well-known
to defendants; in failing to incorporate “basic engineering” and “quality
construction” including readily available seatbelt technology such as cinching
latch plates which would have better restrained plaintiffs’ decedent and
prevented vertical excursion toward and contact with the crushing and collapsing
weak roof structure.
B.
Fraudulently concealing and failing to disclose to the decedent, or other
customers, that defendants had conducted “accident avoidance maneuver” tests,
which simulated the type of steering inputs made by decedent and demonstrated
two wheel “tip ups” at speeds as low as 33 mph, and withholding this critical
information from decedent by not revealing it in the Owner’s Manual or anywhere
else, thereby deliberately lulling consumers such as plaintiffs’ decedent into a
false sense of security and inducing them to purchase the falsely advertised
“advanced engineer(ed) and quality construct(ed)” SUBJECT 4RUNNER, when
defendants knew that it was one of the most unsafe vehicles on the roadway
because of all of its inherent defects and
instability;
C.
Fraudulently mis-stating, and deliberately minimizing the likelihood of
rollovers on page 139 of the Owner’s Manual by stating “(a) void sharp turns or
abrupt maneuvers, if at all possible. As with other vehicles of this type,
failure to operate this vehicle correctly may result in loss of control or
vehicle rollover” when defendants knew that there would be everyday, common
driving occurrences such as accident avoidance maneuvers, or road recovery
maneuvers, that would be unavoidable and, given the inherent defects in the
design and construction of the SUBJECT 4RUNNER would almost certainly result in
rollovers with high morbidity and mortality rates which consumers and
plaintiffs’ decedent would be unaware of; in concealing and failing to disclose
that there was a “risk of serious personal injury” without mentioning the very
real risk of death, as occurred herein, if “sharp turns or abrupt maneuvers”
resulted “in loss of control or vehicle rollover”, when defendants for a long
period of time prior to this incident knew of fatalities caused by 4RUNNER
rollovers, thereby concealing and minimizing the true risk of harm to persons
such as decedent;
D.
Fraudulently failing to define “abrupt maneuvers” or to warn consumers such as
decedent that “abrupt” accident avoidance maneuvers would naturally be expected
to occur but that such driving conduct could result in a sudden and deadly
rollover, as occurred herein, while hiding from consumers the substantial
defects in stability and control, weak and inadequate roof strength, lack of
protective laminated glass in the side windows, absence of readily available
ESC, and lack of latching cinch plate safer seat belt technology all of which
defendants knew had caused high statistical morbidity and mortality in prior
4RUNNER rollovers, thereby deliberately lulling consumers such as plaintiffs’
decedent into a false sense of security and inducing them to purchase the
falsely advertised “advanced engineer(ed) and quality construct(ed)”
SUBJECT VEHICLE, when defendants knew that it was one of the most unsafe
vehicles on the roadway because of all of its inherent defects and
instability;
E. Fraudulently
depicting, on page 32 of the Owner’s Manual, a 4RUNNER in a “rollover” position
showing no appreciable roof crush, or partial ejection of occupants, in order to
deliberately mislead decedent and other consumers into believing such an event,
if it occurred, would not pose any increased risk of harm, or death, even though
defendants were well aware for many years of roof crush, partial ejections, and
fatalities occurring in 4RUNNER rollovers which only the defendants knew were
the result of all of the aforementioned defects in design and construction of
the 4 RUNNER thereby deliberately lulling consumers such as plaintiffs’ decedent
into a false sense of security and inducing them to purchase the falsely
advertised “advanced engineer(ed) and quality construct(ed)” SUBJECT
4RUNNER, when defendants knew that it was one of the most unsafe vehicles on the
roadway because of all of its inherent defects and instability;
62. Plaintiffs’ decedent received the Owner’s Manual
in the SUBJECT 4RUNNER when she purchased it, and she read and relied upon all
of the false and fraudulent statements and fraudulently omitted safety
information in buying and driving the SUBJECT 4RUNNER. Solely as a result of the
fraudulent statements, misrepresentations and omissions of the defendants, which
plaintiffs and plaintiffs’ decedent relied upon, plaintiffs’ decedent sustained
severe blunt impact injuries with lacerations of left cephalic vein and brachial
artery branches and positional asphyxia resulting in catastrophic and fatal
injuries, all to plaintiffs’ detriment in a sum to be determined for pre-death
pain and suffering, medical and funeral expenses and wrongful death damages.
63. The fraudulent conduct of defendants set forth above
was of such a willful and wanton nature as to evidence a total disregard and
indifference for the life, health and safety of consumers, and decedent herein,
such that plaintiffs are entitled to an award of punitive damages against
defendants.
64. Solely as a result of the misrepresentations of the
defendants, which plaintiffs and plaintiffs’ decedent relied upon, plaintiffs’
decedent sustained severe blunt impact injuries with lacerations of left
cephalic vein and brachial artery branches and positional asphyxia resulting in
catastrophic and fatal injuries, all to plaintiffs’ detriment in a sum to be
determined for pre-death pain and suffering, medical and funeral expenses and
wrongful death damages.
WHEREFORE, plaintiffs pray for judgment against
defendants and each of them, as follows:
ON ALL CAUSES OF
ACTION:
1. For special and economic damages including, medical expenses,
loss of past and future earnings and earning capacity, according to proof at
trial;
2. For general damages including damages and for loss of
consortium;
3. For prejudgment interest, as determined by and
accrued according to applicable statutes;
4. For costs of suit incurred
herein; and
5. For any other and further relief the Court deems just and
proper. ALLEGATIONS SUPPORTING EXEMPLARY DAMAGES PRAYER ON FIRST CAUSE OF ACTION
ONLY, BY JULIO OBEDIENTE, Individually and as Successor In Interest to the
Estate of ELISA OBEDIENTE, CESAR OBEDIENTE, JULIO OBEDIENTE, JR.,
RAFAEL OBEDIENTE, amd SANDRA DUFFAU, AS AGAINST DEFENDANTS TOYOTA USA, INC.,
TOYOTA MOTOR CORPORATION, and DOES 1 through 25, Inclusive,
ONLY
6. Exemplary and punitive damages.
DATED: JULY 10, 2009 BISNAR & CHASE,
LLP
By:__________________________________
BRIAN D CHASE
JOHN V.
BELL
Attorneys for Plaintiffs
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a trial by jury.
DATED: JULY 10, 2009 BISNAR & CHASE, LLP
By:__________________________________
BRIAN D CHASE
JOHN V.
BELL
Attorneys for Plaintiffs
BISNAR | CHASE 2006-2010 Super Lawyers names outstanding lawyers from more than 60 practice areas who have attained a high degree of peer recognition and professional achievement. BISNAR | CHASE has received this award for five consecutive years. Brian Chase was named one of the 2010 Top 50 Orange County Lawyers.
